DISCUSSION

Robert L. Edick, Jr., Brittney L. Edick and Amber M. Edick, grandchildren of the Decedent, have filed Objections to the pending Petition for Probate. Therein, they contend that the Decedent was not of sound mind and memory at the time she executed the purported Last Will and Testament, that said instrument was not executed in accordance with the statutory requirements of EPTL Section 3-2.1 and also that her son Jeffrey Kehoe exercised undue influence over her.

Before the Court is a Motion for Summary Judgment filed by Steven W. Gebo, Esq., the attorney for the Estate of Shirley Kehoe wherein he seeks dismissal of the Objections. In support of his motion he offers, among other things, several affidavits from various family members who attest to the Decedent's competency. Citing to a transcript of the 1404 hearing as well as to an affidavit of an attesting witness counsel argues that due execution was had and that statutory compliance was had regarding due execution. Finally, Attorney Gebo argues that there was no evidence of undue influence by Jeffrey Kehoe.

In a reply Affirmation, Robert F. Baldwin, Jr., Esq., attorney for the Objectants, asserts that the statements contained in the Affidavit of Amber Edick regarding her observations of the Decedent's condition are sufficient to create a question of fact as to mental capacity. Regarding undue influence he notes that Jeffrey Kehoe had been operating as the Attorney-in-Fact for the Decedent for a number of years and was the only one of her children to be listed as the joint owner of a bank account with her. Further, he states that Mr. Kehoe assisted the Decedent with her financial and business dealings and that all of these things establish there was a special relationship between the Decedent and Mr. Kehoe such that the burden shifts to him to prove [*2]there was no undue influence. Finally, as to the allegation of improper execution, Attorney Baldwin states that the Affidavit of Mr. Allen establishes that the statutory requirements of EPTL 3-2.1 were not fully complied with. He also notes that, because the will execution ceremony was not supervised by an attorney, no presumption of due execution attaches and that accordingly the Court must carefully examine the facts to determine if the requirements of the statute were met.

Because summary judgment is a drastic remedy, it should only be granted in situations where there is no doubt as to the existence of triable issues of fact Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When considering a motion for summary judgment the focus of a court's concern is issue finding, not issue determination, and the affidavits should be scrutinized carefully in a light most favorable to the party opposing the motion Stallman v. Twentieth Century-Fox Film Corp, 3 NY2d 395 (1991). However, where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the issue Zuckerman v. City of New York, 49 NY2d 557 (1980). When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one Guggenheimer v. Ginzburg, 43 NY2d 268 (1997).

After reviewing the moving papers of the parties and considering the points raised by counsel during their oral argument, the Court concludes that the Petitioner has made a prima facie showing regarding the Petition for Probate and that the Objectants have failed to raise any triable issues of fact.

Regarding due execution, the Proponent has offered an instrument signed by the Decedent and witnessed by her sister and brother-in-law, Linda and Gerald Allen. In addition to witnessing the will, the Allens also executed a SCPA 1406 Affidavit.

Above the witness' signature it is provided "The foregoing instrument, consisting of five (5) typewritten pages, including this one, was on the date thereof signed by Shirley A. Kehoe in the presence of us and each of us, and at the time of such signing and sealing the testatrix in the presence of us and each of us, published and declared this instrument signed and sealed by her to be her Last Will and Testament, whereupon we then and there, in her presence and in the presence of each other, at her request, signed our names thereto as attesting witnesses". The accompanying 1406 Affidavit makes the same recitations and further states that the testatrix was over eighteen years of age and in the mind of the witnesses "of sound mind, memory and understanding and not under any restraint or in any respect incompetent to make a Will". Thus, even though the will was not executed under the supervision of an attorney, the Court finds that the Proponent has made a prima facie showing of due execution.

In support of their contention that due execution was not had, the Objectants offer only conclusory assumptions based on the statements of Mr. Allen at the 1404 examination to the effect that it was Mr. Kehoe and not the Decedent herself that asked him to witness the Will and that prior to the Decedent signing the Will that he said some "legal words" and presented the document for signature. The Court has reviewed Mr. Allen's testimony at the 1404 examination and concluded that, taken as a whole, there is nothing therein that would raise any triable question of fact as to due execution or which would rebut the 1406 Affidavit. While it is true that no presumption of due execution attached to the instant instrument because it was not executed under the supervision of an attorney, the Proponent has met his burden in establishing the same through the 1406 Affidavit of the attesting witnesses together with the contents of the 1404 [*3]examination of Mr. Allen.

Regarding the contention of the Objectants that the purported Will was not freely or voluntarily made by the Decedent because her signature was procured by the undue influence of her son, Jeffrey Kehoe, the Court concludes that the Objectants have submitted nothing beyond speculation and conclusory allegations in support of their position. "An objectant contesting the admission of a propounded instrument to probate based on the alleged exercise of undue influence must show that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist" Matter of Zirinsky, 43 AD3d 946 (2nd Dept. 2011).

There is no question that the Decedent and her son Jeffrey had a close relationship and that she replied upon him to help her manage her business and financial affairs. It is also uncontested that Mr. Kehoe alone drafted the instrument in question and presented it to the Decedent to be executed. However, the Objectants offer nothing to support their contention that Mr. Kehoe exercised undue influence beyond presenting these facts to the Court. A mere showing of opportunity and even of a motive to exercise undue influence does not constitute prima facie evidence of undue influence unless there is in addition evidence that such influence was actually utilized Matter of Walther, 6 NY2d 49 (1959).

The Objectants assert that because Mr. Kehoe was regarded as the "leader of the family", anything he presented for signature would be signed. Again, this is a mere conclusory statement which, in the instant case, appears to be contradicted by Mr. Allen's testimony at the 1404 examination wherein he stated regarding the execution "And then he had Shirley go through the will, one page at a time, and she looked through it, she took her glasses at that time, she put her glasses on so she could read it and she looked through it and said yes, this is okay, and she signed it and then they handed it to Linda and I and we both signed". This indicates to the Court that the Decedent did not simply sign what was placed before her, but rather that she carefully read and acknowledged that the contents of the instrument were satisfactory to her.

The evidence before the Court suggests that the Decedent was strong-willed and independent. Although Jeffrey Kehoe handled various business and financial affairs for the Decedent, she did not depend on him for care or financial support. The fact that it was Mr. Kehoe alone who drafted the purported Will at issue standing alone does not equate to the existence of undue influence. No claims of threats, physical violence or intimidation has been alleged. Because the Objectants have demonstrated nothing beyond the fact that the Decedent had a close relationship with the Decedent, they have failed to raise a triable issue of fact as to undue influence.

The final Objection ground is lack of testamentary capacity. It is well established in New York that a testator is presumed to have testamentary capacity and this presumption must be overcome by a party attempting to prove lack of capacity Matter of Benway, 272 AD 463 (3rd Dept. 1947). Here, in opposition to the summary judgment motion Amber Edick submitted an Affidavit wherein she stated that she was with the Decedent in the hospital the day the purported will was executed. Therein she describes the Decedent as looking very drained and fatigued. Further, Ms. Edick described the Decedent as depressed and in a lot of pain. She further described the Decedent, without going into specifics, as talking about matters that were already discussed after the conversation moved on and responding with words that did not make sense. [*4]No other evidence beyond these statements have been offered by the Objectants.

Testamentary capacity does not require a mind without fault or a memory without flaw and has been described as the lowest level of capacity under the law. To have testamentary capacity, the testator must understand, and be able to recall without prompting the nature and extent of her property, the natural objects of her bounty and the disposition of her property provided for in the will Matter of Castiglione 40 AD3d 1228 (3rd Dept. 2007).

The appropriate inquiry is whether a decedent was lucid and rational at the time the will was made Matter of Williams, 13 AD3d 954 (3rd Dept. 2004). Here, the testimony offered at the 1404 examination together with the 1406 Affidavit of Mr. Allen establishes a prima facie showing of testamentary capacity. The fact that the Decedent was in pain, depressed or even unable to follow conversations at time does not establish a lack of testamentary capacity. Once again, the Objectants offer nothing beyond speculation in the face of a prima facie showing by the Proponent, which is insufficient to demonstrate a triable issue of fact.

As counsel for the Objectants notes, the purported will makes a disposition of a property owned by Jeffrey Kehoe and a property owned by Myron Kehoe. Mr. Baldwin contends that language is evidence of a lack of understanding of the nature and extent of the property being disposed of. While the Proponent does not dispute the ownership of these parcels of land, given the relatively complex nature of the Decedent's holdings and the close family relationship, this discrepancy does not rise to the level that would create a triable issue of fact as to lack of testamentary capacity in light of the statements as to competency made by the attesting witnesses.

Based on the foregoing the Motion for Summary Judgment will be granted. Accordingly it is hereby

ORDERED, ADJUDGED AND DECREED, that Motion for Summary Judgment filled with the Court on September 15, 2015 is granted; and it is further

ORDERED, ADJUDGED AND DECREED, that Objections to Probate dated June 10, 2015 are dismissed; and it is further

ORDERED, ADJUDGED AND DECREED, that the Last Will and Testament of Shirley A. Kehoe dated July 12, 2014 shall be admitted to probate. A separate Decree granting the same shall issue forthwith.